Carlisle Lumber Co.

National Labor Relations Board - Board Decisions

Mar 3, 1938

5 N.L.R.B. 776 (N.L.R.B. 1938)

In the Matter Of CARLISLE LUMBER COMPANY and LUMBER & SAWMILL
WORKERS' UNION , LOCAL 2511, ONALASKA , WASHINGTON , and Asso-
CIATED EMPLOYEES OF ONALASKA , INC., INTERVENER
Case No. C-93
Mr. Thomas P. Graham, Jr., for the Board.
Mr. Theodore B. Bruener, of Aberdeen, Wash., for the respondent.
Mr. J. O. Davies, of Chehalis, Wash., for the Union.
Mr. Howard S. Friedman, of counsel to the Board.
SUPPLEMENTARY DECISION
AND
ORDER
March 3, 1938 '
STATEMENT OF THE CASE
On January 16, 1936, Lumber & Sawmill Workers' Union, Local
2511, Onalaska, Washington, herein called the Union, filed a charge
with the Regional Director for the Nineteenth Region ( Seattle,
Washington) against the Carlisle Lumber Company, Onalaska , Wash-
ington, herein called the respondent. On the same day the National
Labor Relations Board, herein called the Board, issued a complaint
against the respondent alleging that it had engaged in unfair
labor practices within the meaning of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. A hearing was held on the
complaint on April 7, 1936, and the days following. On September
26, 1936, the Board issued a Decision, finding that the respondent
had engaged in the unfair labor practices alleged in the complaint
and an order,' requiring among other things that the respondent-
Make whole its employees who were employed on May 3,
1935, who struck on that date or thereafter, and who were
members of the Union on July 29, 1935, the day of the respond-
ent's first act of discrimination against all of the members of
the Union, for any losses of pay they have suffered by reason
of such discrimination, by payment to each of them a sum equal
.to that which each would normally have earned as wages during
the period from July 29, 1935, to the date of respondent's offer
of reinstatement, less the amount earned by each of them during
such period.
'2 N L R B 248.
776
,DECISIONS AND-ORDERS 777
On October 19, 1936, pursuant to Section 10 (e) of the Act, the
Board petitioned the United States Circuit Court of Appeals for
the Ninth Circuit, herein called the Circuit Court, for enforcement
of its order. Argument on the petition was heard by the Circuit
Court on May 5, 1937, and reargument, on September 15, 1937. On
December 13, 1937, the Circuit Court issued its decision qnd order
enforcing the Board's order excepting in so far'as it related to pay.
On this point the Court said :
With respect to that portion of the, order directing back pay
to be made by the company to the employees, we withhold our
ruling for a period of twenty (20) days.
If within such time either party shall apply to us pursuant
to the terms of 160 (c) supra (Section 10 (c) of the Act) for
leave to adduce additional evidence before the Board for the
purpose of determining the wage issue and identifying the per-
sons to whom such wages , if any, are due, together with the
amounts due to such several persons, we will determine there-
from whether such additional evidence is material and whether
there were reasonable grounds for failure to adduce it at the
hearings heretofore had by the Board.
Should such application be granted, a reasonable time will be
allowed within which the Board may, upon hearings before it
or a member, agent, or agency, designated by the Board, deter-
mine the names of the persons if any to whom wages are due,
together with the amounts, if any, due to each, including time
within which the Board may certify such evidence together with
its findings and order thereon to us.
In response to this provision of the Circuit Court's order on De-
cember 28 , 1937, application was made by the Board to that Court
for leave to adduce additional testimony. On January 5, 1938, the
• Court granted the application, ordering that
the Board may take evidence for the purpose of identifying the
persons to whom back wages, if any, are due together with the
amounts due the several persons, under the order heretofore made
by the Board, determine the amount of back pay it finds should
be paid to the several employees, and may certify such evidence
and its findings and order thereon to us, within sixty days from
the entry of this order.
Pursuant to said order; the Board on January 19, 1938, ordered that
a hearing be held by the Regional Director for the Nineteenth Region
for the purpose of taking evidence as required.
On January 28, 1938, the Regional Director for the Nineteenth
Region issued an Order Directing Hearing Pursuant to Order of
,Court, and incorporating a notice of the hearing, copies of which
778 NATIONAL LABOR RELATIONS BOARD
were cliily served upon the respondent and the Union. Pursuant to
the notice , a hearing was held on February 1, 2, 3 and 4, 1938, at
Chehalis, Washington , before Madison Hill, the Trial Examiner
duly designated by the Board. The Board , the respondent , and the
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard , to examine and to cross -examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties.
During the course of the hearing exceptions were taken by the
respondent to various rulings of the Trial Examiner. The Board
has reviewed these rulings and finds that no prejudicial errors were
committed . All rulings of the Trial Examiner are hereby affirmed,
except his ruling that, in effect, all striking Union members dis-
criminated against by the respondent are entitled to their total back
pay, less amounts meanwhile earned, from July 29, 1935, the date
of the discrimination , to the date of the hearing . This ruling must
be modified to the extent that those persons who had obtained other
regular and substantially equivalent employment prior to the Board's
order of September 26, 1936, are entitled to their back pay, less
amounts meanwhile earned, from July 29, 1935 , only to the date
on which they obtained such employment.
Upon the entire record in the case , the Board makes the following :
FINDINGS Or FACT
At the hearing pursuant to the Circuit Court 's order, the Board
introduced in evidence a chart 2 prepared by the respondent , showing
the actual hours of operation by the respondent from July 29, 1935,
to January 31, 1938. A further exhibit 3 introduced by the Board, also
prepared by the respondent and based on the first chart, sets forth an
estimate of the number of hours each of the Union employees would
have worked and the amounts each would have earned if working for
the respondent between July 29, 1935, and January 31 , 1938. A copy
of • this exhibit containing minor corrections was submitted to the
Board by. the respondent after the hearing, and is hereby made a
part of this record. , In arriving at the amounts to be paid each em-
ployee pursuant to the order of September 26, 1936, deductions must
be made, from the estimates of amounts which would have been earned
in employment at the respondent 's plant, for sums actually earned by
the employees at other jobs between July 29, 1935, and February 1,
1938. The balance is the net loss to each employee during that period
caused by the discrimination . Under the Board's order of September
26, 1936, back pay was awarded to the date of the respondent's offer
of reinstatement . Since no offer of reinstatement had been made to the
2 Board Exhibit No. 2.
8 Board Exhibit No. 3
DECISIONS AND ORDERS '779
date of the hearing on February 1, 1938, complete awards cannot be
made by this order, but awards will be made up to that date; the
amounts accruing subsequently to that date up to the time of any
eventual offer of reinstatement must be the subject of later calculation.
We find that,the employees named in Schedule, A were employed
by the respondent on May 3, 1935, struck on that date or thereafter,
were members of the Union on July 29, 1935, and had not obtained
regular and substantially equivalent employment elsewhere at the
time of our order on September 26, 1936, which directed that they be
offered reinstatement. We find that back wages are due to such per-
sons under the order heretofore made by the Board, and we find that
amount of back pay due to each of such persons for the period up to
.February 1, 1938, pursuant to that order, is that set forth in Schedule
A after his name.
In the case of the employees coming within the terms of Section 2
(b) of our order of September 26, 1936, who had, however, apparently
obtained other regular and substantially equivalent employment prior
to that date, the record does not contain evidence from which we
can ascertain the amount due for the period to the date on which such
employment was obtained. The statement of the hours of operations
of the respondent introduced in evidence, is divided into varying
periods ranging in length from one week to ten months. The end
dates of these periods do not correspond with the dates on which
regular and substantially equivalent employment was obtained by the
employees in question. We are, therefore, unable to calculate with
accuracy the hours each would normally have worked at the respond-
ent's plant up to the time he obtained such other employment. More-
over, the evidence as to the earnings of certain such employees else-
where was given in lump sums for the whole period up to the date of
the hearing and was not divided according to dates in such a way as
to enable us to determine what portion of such earnings should be
deducted from the gross back pay due them. For these persons we can
make no finding at the present time, but shall, apply, to the Circuit
Court for leave to adduce further testimony thereon.
Approximately twenty-one (21) additional employees coming
within the scope of Section 2 (b) of our order had suffered no net loss
because of earnings elsewhere during the period up to the time of the
hearing on February 1, 1938. For those we make no findings at the
present time. It is, of course, possible that, by reason of events occur-
ring after February 1, 1938, and prior to the respondent's offer of re-
instatement to them, back pay may become due.
0. F. Kraus was employed by the respondent as a gateman until
May 2, 1935. Thereafter his job was listed as "discontinued". There
was no evidence that this job was not discontinued in good faith by
the respondent. We make no award to 0. F. Kraus.
780' NATIONAL LABOR RELATIONS BOARD
The testimony of John Swiderski and J. B. Jacobson does not pre-
sent evidence sufficiently clear for us to ascertain the amount which
each has earned elsewhere during the period in question. For these
two no finding is made at the present time, but the Board will apply
to the Circuit Court for leave to adduce further testimony as to
them.
Certain employees who testified at the previous hearing could not be
reached and were not present at the hearing on February 1, 1938.
In their absence, there was insufficient evidence on which to' base
findings of amounts due to them. The Board will apply to the Cir-
cuit Court for leave to adduce further testimony as to them.
ORDER
Upon the basis of the above findings of fact the National Labor
Relations Board hereby orders that the respondent, Carlisle Lumber
Company, its officers and agents, shall take the following affirmative
action, pursuant to Section 2 (b) of the Board's order of September
26, 1936, which the Board finds will effectuate the policies of the
Act :
Make whole each of the persons named in Schedule A for the loss
of pay suffered by reason of the respondent's discrimination to Feb-
ruary 1, 1938, by payment to each of them respectively, of the sum
set forth following his name, which sum is equal to that which each
would have earned as wages from July 29, 1935, the date of the dis-
crimination, up to February 1, 1938, less the amount each has earned
during that period.
MR. DONALD WA FEELT SMITH took no part in the consideration of
the above Supplementary Decision and Order.
SCRE1 uLE A
Adams, W. R--------------- $914.09
Allen, B. W________________ 801.78
Aplin, Herbert-------------- 291.02
Arrington, George---------- 1, 638.00
Arrington, W. C------------ 226.38
Bailey, Denver-------------- 473. 11
Baker, Harry-------------- 1,078.53
Baron, Sam---------------- 713.63
Bays, M. L----------------- 2,658.28
Bena, John----------------- 1,206.70
Berg, Roger---------------- 115.85
Berg, Walter--------------- 1, 321.78
Beier, Martin--------------- 648. 18
Bougas, John--------------- 916.35
Box, James---------- ------ 2, 359.78
Bickar, A. M--------------- 1,649.82
Bullock, J. S--------- ------ $1,485.51
Bullock, W. T-------------- 1, 849.40
Burchett, K. E------------- 2,206.64
Calas, Gust----------------- 494.32
Cass, Stanley-------------- 480.29
Christison, Fred -------- __ 539.57
Christian, John ------ _---- 1, 208.37
Curelas. Gust--------------- 1,221.79
Curry, John---------------- 1, 908.96
Davis, Clifford-------------- 761.87
Davis, M. J----------------- 1,236.07
De Lano,'R. W........... 1, 443.46
Derkocht, Tom------------- 39.47
Dyce, Jack------------------ 569.31
Erickson, S. O-------------- 1,289.54
Farlas, Sam---------------- 1,211.26.
DECISIONS AND-ORDERS 781
SCHEDULE A--Continued
Fitzhugh, J. R-------------- $355.49 Noble, Claude--------------- $563. 40
Fox, Orra------------------- 483.73 Oppelt, Jack---------------- 1,997.80
Gilham, Hugh-------------- 892.59 Page, J. A------------------ 1,376.53
Gish, Jess------------------ 842.80 Pannell, George------------- 1,065.49
Goyette, Myron------------- 904.05 Parnel, John---------------- 1,267.00
Greear, A. M--------------- 1, 435.89 Peterson, Louis J----------- 2, 680.96
Greear, J. W-------------- 2, 208.96 Pierpoint, C. W------------- 621.29
Gunder, F. P-------------- 1, 379.70 Pier, 0. D------------------ 1, 212.62.
Hammond, C. P------------ 210.50 Pihl, Alfred---------------- 74.85
Hammond, M. S------------ 716.30 Plumb, H. E---------------- 680.83
Hatch, W. B---------------- 1, 330.13 Plumb, 0. B---------------- 1,557.65
Hawkins, Jess-------------- 2, 043.97 Powell, D. A--------------- 235.93
Hearn, Roy---------------- 808.71L Powell, J. W--------------- 1,986.33
Hegdahl, Waldemar --------- 246.13 Powell, Walter------------- 2,455.26
Hemenway, Louis ----------- 1,702.17 Prill, A. A------------------ 224.45
Henricksen, Andrew P------ 745.12 Ragen, Fred--------------- 1,264.081
Hobensack, T. F------------ 230.66 Ragen, Vital---------------- 832.90
Hope, Ted------------------ 814.26 Raish, Lawrence ------------ 1,727.80
Hunt, John----------------- 3,019.42 Reed , M. E----------------- 381.03
Jacobsen, Martin------------ 1,451.11 Rogers, A. L---------------- 1,341.51
Jacox, Ivan---------------- 713.76 Ronquist, Herbert ---------- 276.63
James, George-------------- 692.00 Ronquist, Sixten------------ 1,329.83
Jeffries, L. B--------------- 911.78 Ronquist, William ---------- 397.09
Jeffries, 0. B-------------- 1,886.98 Ruth, C. L----------------- 384.50
Johnson, A. C-------------- 1,818.95 Schaeffer, E. C-------------- 1,291.51
Johnson, John-------------- 277.11 Schutti, Joe---------------- 854.28
Johnson, S. 0-------------- 2,067.00 Shepherd, Earl------------- 908.59
Jones, Gordon-------------- 463.60 Skinner, J. W------------- 597.40
Katyrynuk, Joe------------- 1,024.34 Smoots, Harry-------------- 827.90
Kerr, Sid------------------ 1,y035.61 Spence, R. L---------------- 1,852.97
King, James---------------- 800.13 Stewart, Stanley ------------ 2,609.72
Kulas, Frank--------------- 808.12 Strasser, George ------------ 890.85
Lambros, Pete ------- ------ 1, 890.85 Strasser, Richard -------- --- 614.49
La Pine, F. A-------------- 2,734.51 Sutphin, Ed--------------- 2, 609.96
La Pine, J. B-------------- 1, 559.86 Sweltzer, J. P--------------- 1,516.65
La Pine, R. D-------------- 2,190.28 Sweitzer, R. E-------------- 750.56
Linder, Alex---------------- 181.85 Swerhun, Fred-------------- 99.09
Locke, Ed-------- --------- 1, 330.33 Thayer, Harold------------- 724.25
Looney, H. R--------------- 206.50 Thayer, Howard ------------ 1,010.05
Madden, Joe---------------- 246.09 Trueman, Dave --------- _-- 1,867.21
Marsh, 0. W----------------- 17. 59 Wallace, Dave------------- 1, 777.00
McChesney, Ray-___-----_
M C k S
795.35
463 99
Westerman, C. J------------ 988.99
c rac en, ------------ _ .
White Roscoe---- 1 161 49McDonald, Henry.__-----_- 1,300.56
, ---------- , .
Wilson Everett 264 78McIntyre, Fred------------- 851..24
, ------------- .
Wilson George 1 595 05Miller, Henry--------------: 1,076.78 , ------------- , .
Miller, Manson-------------- 235.13 Wisner, Louis-------------- 1, 449.78
Miller, S. A---------------- 1,262.63 Wood, B. F---------------- 1, 299.08
Misner, R. V---------- ---- 2,935.2o Wolhaupt, C. M------------- 2, 282.40
Morris, B. L--------------- 567.20 Wright, A. G--------------- 1,070.51
Nelson, Alex---------------- 222.42 Wright, Wesley------------- 720. 51
Nelson, Fritz--------------- 429. 50 Zandecki, John------------- 1, 004.89